Congressgave the U.S. EPA "gap-filling" authority under the Clean Air Act todraft regulations for an array of emissions and sources, providing a firm legalfoundation for the Clean Power Plan, a group of more than 200 former andcurrent members of Congress told a federal appeals court March 31.
Amicicuriae briefs on behalf of the EPA were due April 1 in the challenge of theagency's carbon-cutting rule before the U.S. Court of Appeals for the Districtof Columbia Circuit. The coalition of lawmakers, made up mostly of Democratsand only two former Republican legislators, jointly said Congress gave the EPAdiscretion under the Clean Air Act amendments of 1970 to form and implementemission standards for new pollutants "known and unknown" and"elaborate upon those criteria."
Thatauthority allows the agency to simultaneously regulate carbon emissions andhazardous air pollutants from the same source — power plants — contrary to akey argument made by Clean Power Plan opponents, the March 31 brief said.Critics of the rule say the EPA cannot regulate carbon output from existing power plantsunder Section 111(d) of the Clean Air Act while regulating air toxics fromthose plants under Section 112. But the lawmakers said that argument"fundamentally misunderstands" the Clean Air Act and the regulatorylatitude it gives the EPA.
"Byenacting a gap-filling provision that would give EPA flexibility to address newpollution problems, Congress ensured that the federal government would be ableto respond to new and diverse challenges not anticipated at the time the lawwas enacted, and that EPA could tailor regulations to the specific nature ofthe pollutant and source," the brief said.
Opponentsof the Clean Power Plan, which include more than half of the states, industrygroups and many GOP lawmakers, argue that the 1990 Clean Air Act amendments precludesimultaneous regulation under Sections 111 and 112 for the same source, but"that was neither the intent nor the effect of those amendments," thebrief said.
"[TheClean Air Act] continues to authorize EPA to regulate those air pollutants thatpose a substantial threat to the public health and welfare, and the rule is anexercise of that authority," the group said. The brief went on tohighlight the Supreme Court's 2007 ruling in Massachusettsv. EPA, which established that the agency had the power to regulategreenhouse gas emissions from vehicles under the Clean Air Act.
Congress could pass legislation to curtail or go around theEPA's authority, but the brief noted that a number of bills aimed at doing justthat has never become law. Legislators fighting the rule "are trying toachieve in the courts a major rollback of the [Clean Air act] that they havenot been able to achieve through the legislative process. This court should notcountenance that effort."
The lawmakers also dismissed arguments, raised by aGOP-backed group of Congress members, that the failure of past carboncap-and-trade legislation precludes the EPA from authorizing allowance tradingprograms as part of the Clean Power Plan. Congress' authorization of emissionallowance trading regimes for other pollutants elsewhere in the Clean Air Actshows that the law-making body "views such market based mechanisms as aflexible, cost-effective approach to dealing with pollution and one that iswell within its authority to use in addressing CO2 emissions from powerplants," the March 31 brief said. Signatories of that brief included Rep.Frank Pallone Jr., D-N.J., ranking member of the U.S. House Energy and CommerceCommittee, and House Minority Leader Nancy Pelosi, D-Calif.
In a separate brief filed April 1, two leading drafters ofthe 1970 Clean Air Act amendments also voiced support for the Clean Power Plan.Former U.S. Senate staff members LeonBillings and Thomas Jorling said the 1970 amendments "granted EPA theflexibility to regulate all known and later discovered air pollutants"that harm human health and the environment.
The EPA's creation of the Clean Power Plan under Section111(d) "fits squarely within the authority Congress delegated to theagency," the two former Senate staffers said. "By seeking to vacatethe rule, petitioners would, in fact, defeat the purpose of Section 111(d),which is to control emissions of non-criteria, non-[hazardous] air pollutantsthat adversely affect public health and welfare."
But critics of the rule refuted many of the amici briefs'main points. Scott Segal, a partner in Bracewell LLP's policy resolution group,said the Clean Power Plan "goes beyond the fence line of the regulatedsource" and that regulation under Section 112 pre-empts use of Section 111for regulating carbon. Segal is the director of the Electric ReliabilityCoordinating Council, a utility industry group opposed to the plan.
The rule "remains in serious legal trouble onstatutory, constitutional, administrative and implementation grounds,"Segal said. "We think any fair panel of judges [is] likely to be deeplydisturbed by EPA's regulation, regardless of the subject matter it purports toaddress or the overheated rhetoric with which it is defended."